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Group files court cases challenging Trudeau Cabinet reappointments of federal Lobbying Commissioner and Ethics Commissioner for third six-month terms

Laws for both commissioners say interim appointments limited to no more than six months per person, and only allowed when commissioner is absent or incapacitated

Cases also based on concern that Cabinet handing out repeated six-month contracts to government watchdogs creates a conflict of interest for those watchdogs

Despite their false claims, Liberals’ appointment process still Cabinet-controlled not merit-based – 10,000+ call on Liberals to make changes to match Ontario’s and Britain’s world-leading appointment processes

Tuesday, July 11, 2017

OTTAWA – Today, Democracy Watch announced its court cases challenging the Trudeau Cabinet’s reappointment of both federal Lobbying Commissioner Karen Shepherd and Ethics Commissioner Mary Dawson to their third six-month terms since their multi-year term in office expired in July 2016. Yavar Hameed of Hameed Law and Bijon Roy of Champ and Associates in Ottawa are providing counsel to Democracy Watch for the cases.

The cases are based on the claim that the commissioners’ reappointments for their current third six-month terms are illegal. Clause 4.1(4) of the Lobbying Act says that any qualified person can only be appointed as Lobbying Commissioner for an interim term of no longer than six months, and that such interim appointments are only allowed when there is no commissioner or the commissioner is incapacitated (which was not the situation when the Cabinet made the reappointment).

The Parliament of Canada Act subsection 82(2) says the same things about appointments of anyone as interim Ethics Commissioner. Lobbying Commissioner Shepherd began her third six-month term on June 30th, and Ethics Commissioner began her third six-month term on July 9th.

“The federal lobbying and ethics laws clearly intend that the commissioners who enforce those laws be appointed for seven-year terms to ensure their independence as watchdogs who rule on situations involving Cabinet ministers and their political party supporters. The Trudeau Cabinet is abusing those laws and undermining the independence of those watchdogs by repeatedly handing six-month contracts to the Lobbying Commissioner and Ethics Commissioner,” said Duff Conacher, Co-founder of Democracy Watch.

The cases are also based on the concern that when Cabinet hands out repeated six-month contracts to government watchdogs who judge and issue rulings about situations involving Cabinet ministers, the contracts create conflicts of interest for those watchdogs as they have an incentive to issue rulings that favour Cabinet, MPs and supporters of their political party (and an incentive to fail to issue rulings on situations in which the evidence clearly shows that a minister or ruling party supporter violated the law).

Both the Ethics Commissioner and the Lobbying Commissioner are currently investigating (or refusing to investigate) situations involving Prime Minister Trudeau and other Cabinet ministers. The Ethics Commissioner is investigating complaints filed by Conservative MP Blaine Calkins and Conservative Party leader Andrew Scheer about the Aga Khan’s December 2016 trip gift to Trudeau. The Ethics Commissioner has also refused to investigate complaints other situations involving Trudeau and other Liberals.

As far as Democracy Watch knows (it is difficult to tell because the Lobbying Commissioner’s 2016-2017 annual report fails to provide details), the Lobbying Commissioner’s office: 1. is investigating Democracy Watch’s complaint about an August 26, 2015 fundraising event attended by Justin Trudeau and hosted by Apotex Inc. chairman Barry Sherman (Apotex lobbies the PMO); 2. is investigating Democracy Watch’s complaint about an August 25, 2014 fundraising event attended by Justin Trudeau hosted by a Clearwater Seafoods co-founder and board member (Clearwater lobbies the PMO), and; 3. is investigating Democracy Watch’s complaint about the situation revealed in an October 25th Globe and Mail article involving Apotex Inc. chairman Barry Sherman who assisted with selling tickets for a fundraising event that Finance Minister Bill Morneau attended (Apotex lobbies Finance Canada).

However, the Lobbying Commissioner seems to be failing to investigate Democracy Watch’s complaint filed in May 2016 about travel junket gifts given by 16 businesses and lobby organizations to federal MPs (including several Liberal MPs) from 2009 to 2016. There is no mention of the complaint in the compliance section of the Lobbying Commissioner’s 2016-2017 annual report.

That section of the report also states that the Lobbying Commissioner let 10 lobbyists off the hook for clear violations during the 2016-2017 fiscal year (while only finding two guilty). As well the compliance section of the Commissioner’s 2015-2016 annual report states that the Commissioner let seven lobbyists off the hook for clear violations (while only finding two guilty). How many of the lobbyists who broke the Lobbying Act or Lobbyists’ Code since the 2015 election and are Liberal Party supporters is not known because the Commissioner does not disclose the identity of lobbyists she let off the hook (nor the reasons why she let each lobbyist off the hook).

In all of the complaints it has filed in the past year, because they have been essentially serving at the pleasure of the Trudeau Cabinet on six-month contracts, Democracy Watch has requested that the Lobbying Commissioner and Ethics Commissioner recuse themselves from investigating and ruling on the complaints and instead have someone independent of the Trudeau Cabinet rule on the complaint.

“Prime Minister Trudeau finally acknowledged in May that the Ethics Commissioner investigating him causes a conflict of interest that prohibits him from taking part in decisions about the Ethics Commissioner position. The Ethics Commissioner and the Lobbying Commissioner have both failed to acknowledge that they are in a conflict of interest because they have been handed six-month contracts by the Trudeau Cabinet while investigating Trudeau and other Cabinet ministers,” said Conacher.

The case against the Ethics Commissioner’s reappointment replaces an earlier case that Democracy Watch had filed in the Federal Court of Appeal that has been discontinued.

More than 10,000 Canadians have signed Democracy Watch’s Stop Political Lapdog Appointments petition on in the past few weeks. The petition calls on the federal Liberals to make the Cabinet appointment process actually independent and merit-based (as Britain has) for appointments of all judges, officers of parliament, and members of agencies, boards, commissions and tribunals. The petition was launched as part of Democracy Watch’s Stop Bad Government Appointments Campaign.

The Liberals haven’t changed the federal Cabinet appointment process at all from what the Conservatives used (other than adding the goal of diversity). In the answer to the third question in the “Frequently Asked Questions” document describing the Liberals’ Cabinet appointment process (which was updated on April 28th), it says Cabinet ministers “manage” all appointment processes.

That means Cabinet appointments are still partisan, political processes, not merit-based as the Liberals claim (as the recent appointment of former Ontario Liberal Cabinet minister Madeleine Meilleur as the federal Languages Commissioner has revealed so clearly). And the government’s website listing openings and qualifications for Cabinet appointments that the Liberals claim makes the appointment process more open and transparent has existed for several years.

As well, the Liberals have made the very questionable claim that they can’t find anyone qualified to be the next Lobbying Commissioner or next Ethics Commissioner.

“The Liberals’ false claims smell very fishy and are clearly an attempt to cover up the fact that their Cabinet appointment system is essentially the same as the Harper Conservatives used, and that it’s still political and partisan, not merit-based, and allows Trudeau Cabinet ministers to choose their own Liberal Party cronies as government and law enforcement lapdogs,” said Conacher.

“The Trudeau Cabinet is in a conflict of interest when choosing any government or law enforcement watchdog because those watchdogs enforce laws that apply to Cabinet ministers or their departments,” said Conacher. “The only way to stop this dangerously undemocratic and unethical appointment process for judges and watchdogs is to establish a fully independent public appointment commission, as Ontario and Britain have, to conduct public, merit-based searches for nominees and send a short list to Cabinet, with Cabinet required to choose from the list.”

The independent commission, whose members are approved by all federal party leaders (and entities such as the Canadian Judicial Council) should be mandated to do a public, non-partisan merit-based search for candidates, and the Trudeau Cabinet should be required to choose appointees from a short-list of one to three candidates that the commission nominates.

Ontario uses this kind of independent appointment system to appoint provincial judges (the advisory committee provides a shortlist of three candidates to the Cabinet). Britain uses it to appoint judges and judicial tribunal members (like the Ethics Commissioner and Lobbying Commissioner are) – its advisory committee provides only one candidate to the Cabinet, and the Cabinet has to accept the candidate or reject the candidate and provide written reasons. Both of their systems are considered to be world leading.

The new appointment process, and prohibition on being reappointed, should apply to the judicial advisory committees and appointments of all 1,123 federal and provincial superior court judicial appointments listed here, and to the new public appointments commission that must be established to ensure a merit-based selection process for a short list of candidates for appointment to the 32 federal administrative tribunals and 108 agencies/boards listed here.

Democracy Watch also called on the Liberals, and all governments, to change the law to ensure all Cabinet appointees who watch over the government or oversee key democracy laws and processes (especially every Officer of Parliament) serve only one term.

“Like judges, all government and democracy watchdogs must only serve one term, with no possibility that the government can reappoint them, to ensure watchdogs don’t try to please the government in order to keep their job,” said Conacher. “To safeguard our democracy the ruling party must not be allowed to reappoint any government watchdog.”

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Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
[email protected]

Democracy Watch’s Stop Bad Government Appointments Campaign amd Government Ethics Campaign